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Appeals court upholds Dallas mask mandate

There’s still mask mandate litigation going on, and Greg Abbott keeps getting his ass handed to him.

Clay Jenkins

Mask mandates will be allowed in the State of Texas. The Fifth Court of Appeals in Dallas issued the ruling during the late night on November 22.

The decision is the latest chapter in the fight between Governor Greg Abbott and Dallas County Judge Clay Jenkins over how to handle the COVID-19 pandemic.

Jenkins had argued he had the right to issue a local mask mandate if it means protecting public health and that he had the power to do so under the Texas Disaster Act.

Abbott had asserted that he had the authority to issue a statewide order banning the mandates. His attorneys argued it was a matter of law and that the governor was given the power under the Texas Disaster Act.

On Monday, an appeals judge issued a temporary injunction against the governor’s ban saying, “…Abbott lacks legal authority to act as he attempted. Instead, by endeavoring to exercise power beyond that given to him in the Disaster Act, he attempted to infringe on Jenkins’s powers.”


After a district judge issued a temporary injunction supporting Jenkins in August, the governor’s office sought a higher ruling from the district court of appeals.

Neither the governor’s office nor the Texas Attorney General’s office have commented on the ruling, but they could choose to appeal it to the Supreme Court of Texas.

“We’ll have to see what the attorney general and the governor want to do, but I’m not tired and I will continue to stand for your public health against any other elected official,” said Jenkins.

In the meantime, Jenkins says, don’t let all the legal back and forth confuse you.

“Don’t listen to what people tell you is legal. Listen to what doctors tell you is safe,” he said.

See here for the previous entry, and here for the opinion. Note that this is a state lawsuit about what cities and counties can do, and has nothing to do with the federal lawsuit that the Fifth Circuit Court of Appeals was meddling in. Different Fifth Courts – believe me, I know, it’s confusing.

Beyond that, not a whole lot of coverage when I went looking for stories, which I knew to do because I saw this tweet from Judge Jenkins. Maybe that’s a holiday week problem, I don’t know. As I said, there’s a ton of lawsuits out there over the Abbott executive order that banned mask mandates by cities and counties and school districts, and so far the plaintiffs have mostly won. That may all come crashing to a halt at the Supreme Court, but until then the leaders who have been bold and exercised actual leadership have been rewarded for it. Gotta enjoy those victories while you can.

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One Comment

  1. Kibitzer Curiae says:

    Re: “On Monday, an appeals judge issued a temporary injunction against the governor’s ban”

    Two mistakes here … or, if you will, imprecise reporting:

    (1) This was an interlocutory appeal of a temporary injunction entered by a Dallas trial court, not an injunction issued by the court of appeals. The motion for that (under rule 29.3) was withdrawn 8/26 because the SCOTX chose to interfere in pending litigation over GA-38 on urging of the AG; see Tex. No. 21-0720 (smandamus in San Antonio case)). Last Monday the Dallas Court of Appeals affirmed the trial court’s temporary injunction order against Abbott, finding no abuse of discretion or legal error. This resolves the appeal, but not the case in the trial court (because a temporary injunction is not a final judgment). And the AG can, of course, return to the Texas Supreme Court to petition for reversal of the court-of-appeals decision.

    (2) Intermediate appellate courts sit in panels of three. No different here. The opinion was written by one (Erin A. Nowell) but that doesn’t change the fact that it is an opinion of the court. The two other panel members were Justices Osborne and Pedersen, III).

    Abbott v. Jenkins, No. 05-21-00733-CV (Tex.App.-Dallas, Nov. 22, 2021, no pet. h.)(“We affirm the trial court’s August 25, 2021 order granting Jenkins’s request
    for a temporary injunction.”)

    Here is the docket URL again: with links to opinion & judgment (issued as a single PDF by the 5th COA) and briefing, including some friend-of-the-court briefs.